Top court extends internet ban for child porn

The Supreme Court of Canada has found that part of a Harper government law punishing sexual offenders who prey on children by banning them from the internet can be imposed retroactively on predators convicted before the new law was passed.

Allowing a penalty to be applied after the fact is something the highest court rarely allows, but here the majority of judges wanted to catch up with what its judgement calls “the rate of technological change over the past decade.”

In a horrendous case in Revelstoke, B.C. a man known as K.R.J. pleaded guilty to one count of incest — in fact, vaginal rape — involving his three-year old biological daughter, and to one count of making child pornography, since he made videos of the act. His name cannot be published to protect the identity of his daughter.

The trial judge found his crimes “hugely disturbing and disgusting”, and K.R.J. was sentenced to nine years in prison.

In sexual crimes, especially those involving children, the sentencing judge has the power to impose conditions on the offender to do with communicating with or being near children once the sentence is completed. In the past, offenders could be prohibited from being near a playground or community centre, or any place where children under 16 were likely to be present.

A ban on using a computer could be also be imposed, but usage was forbidden only for the purpose of communicating with someone under 16. Computer use generally was allowed.

But in 2012, in a crackdown on sexual offences against children, in its Safe Streets and Communities Act, the Harper government expanded those prohibitions to ban any contact whatsoever with children and any use of the internet at all.

The sentencing judge in K.R.J’s trial applied the old prohibitions to him for a period of seven years, restrictions that did not mention the internet, but forbid the use of a computer to communicate with anyone under the age of 16.

The Crown appealed, and in 2014, the B.C. Court of Appeal agreed, 2-1, that the Harper government’s new and expanded restriction on internet use was meant to protect the public and did not constitute a punishment imposed after the fact, putting the offender in a situation of double jeapardy. The appeal court applied a new seven year ban on K.R.J. allowing him no access to the internet for any purpose after finishing his prison sentence.

But one judge on the appeal court dissented, leading to K.R.J’s appeal to the top court.

K.R.J.’s lawyers argued that use of the internet in looking for a job is an important part of re-entering society after prison.

Another part of the Harper government legislation – a ban on all contact with children – meant K.R.J., for instance, couldn’t even enter a McDonald’s restaurant if a 15 year-old worked there.

At the top court, seven of the nine top justices Thursday found the ban on being near children under 16 in any circumstances is a punishment and shouldn’t be applied retroactively to a sex offender convicted before 2012.

But the court upheld the total ban on internet use in K.R.J.’s case, or on anyone in similar circumstances.

Justice Andromache Karakatsanis, writing for the majority, mentioned the prevalence of social media websites such as Facebook, Twitter, Tinder, Instagram and Snapchat. “These new online services.” she wrote, “have given young people – who are often early adopters of new technologies – unprecedented access to digital communities.”

She continued, “At the same time, sexual offenders have been given unprecedented access to potential victims and avenues to facilitate sexual offending.”

It’s important to note the highest court did not find the Harper government’s expanded prohibitions on any contact with children, or any use of the internet, cruel and unusual punishments and thus unconstitutional. The top court only dealt with the question about whether these are punishments that can be imposed retroactively on anyone who offended before 2012.

In that sense, it is a narrow judgment, applying only to K.R.J. and offenders in the same circumstances — likely not very many people.

But sexual abuse of children often is prosecuted decades after the offence, once children have grown up and decide to bring charges against their abusers. In those future cases, the ban on internet usage could be applied to an unknown number of convicted offenders.